Citation Nr: 1327610	
Decision Date: 08/28/13    Archive Date: 09/05/13

DOCKET NO.  07-27 756	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to an initial evaluation in excess of 20 percent prior to October 3, 2011 and in excess of 60 percent from October 31, 2011 for lumbosacral strain, myositis (also claimed as lower back pain), with intervertebral disc syndrome (IVDS).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

M. Harrigan Smith, Counsel
INTRODUCTION

The Veteran served on active duty from April 2005 to July 2006.  He also has unverified service in the National Guard, to include a period of active duty for training (ACDUTRA) from March 1989 to August 1989.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Commonwealth of Puerto Rico, which, in pertinent part, denied service connection for bilateral hearing loss and major depression. The RO also granted service connection for lumbosacral strain, myositis (also claimed as lower back pain) at a 20 percent evaluation, effective July 6, 2006.

In January 2010, the RO continued the 20 percent evaluation for the Veteran's back disability. 

In July 2010, the RO continued the denial of service connection for major depression and granted total disability rating based on individual unemployability due to service-connected disability (TDIU).

In March 2011, the Board remanded the issues of entitlement to service connection for major depression and entitlement to an initial increased evaluation for lumbosacral strain, myositis (also claimed as lower back pain) for evidentiary development.  The Board also denied service connection for bilateral hearing loss.

The Veteran filed a timely appeal with respect to the bilateral hearing loss claim to the United States Court of Appeals for Veterans Claims (Court).  Per a November 2011 Joint Motion for Remand (JMR) and Court Order, that part of the Board decision's denying entitlement to service connection for bilateral hearing loss was remanded for compliance with instructions in the JMR.

In June 2012, the Board again remanded the issue of entitlement to bilateral hearing loss for evidentiary development. 

In an October 2012 rating decision, the Appeals Management Center (AMC) increased the evaluation for the Veteran's service-connected back disability to 60 percent, effective October 31, 2011.  As this increased rating does not constitute a full grant of all benefits possible, and as the Veteran has not withdrawn his claim, the claim is still active.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).  The AMC also granted service connection for major depression and assigned a 30 percent evaluation prior to October 29, 2011, and a 70 percent evaluation from October 29, 2011.  The Board notes that the one-year period for filing a notice of disagreement (NOD) has not yet expired. See 38 C.F.R. § 20.302(a) (2012).

In March 2013, the Board remanded the issues on appeal for additional development.  They are again before the Board for further appellate review.

At the beginning of the appeal, the Veteran was represented by the Disabled American Veterans (DAV).  The Board notes that the Veteran had attorney representation during proceedings before the Court.  However, in a December 2012 VA Form 21-22, the Veteran appointed the Veterans of Foreign Wars of the United States (VFW) as his current representative, thereby revoking the earlier powers of attorney.  See 38 C.F.R. § 14.631(f)(1) (2012). 

The issue of entitlement to an initial evaluation in excess of 20 percent prior to October 31, 2011 for lumbosacral strain, myositis, with IVDS is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The Veteran's current bilateral hearing loss began during active duty.

2.  For the period beginning October 31, 2011, the Veteran's lumbosacral strain, myositis, with IVDS has not been manifested by unfavorable ankylosis of the entire spine.


CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral hearing loss have been met.  
38 U.S.C.A. §§ 101(24) 1110, 1112, 1113, 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012).

2.  The criteria for an disability rating in excess of 30 percent for lumbosacral strain, myositis, with IVDS, from October 31, 2011, have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.71a Diagnostic Code 5243 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

With regard to the Veteran's claim for entitlement to service connection for hearing loss, the Board notes that the VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim.  Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance 'if no reasonable possibility exists that such assistance would aid in substantiating the claim'); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In this decision, the Board is granting entitlement to service connection for hearing loss; as such, further assistance is unnecessary to aid the Veteran in substantiating his claim.

The Veteran's claim for an increased disability rating for his service-connected spine disability arises from an appeal of the initial evaluation following the grant of service connection.  Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Therefore, no further notice is needed under VCAA.

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).

The Veteran was provided with a VA examination in October 2011, which served as the basis for his increased in disability rating to 60 percent.  The Board finds that this VA examinations is adequate because, as shown below, it is based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because the reports describe the disability in detail sufficient to allow the Board to make a fully informed determination.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)).  No additional examination is necessary to decide the claim for an increased evaluation for his service-connected lumbar spine disability, as of October 31, 2011.  See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007).

 A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998).  The Board remanded this case in March 2013 in order to obtain records from the current VA medical records from the San Juan VA medical center, the Guayama CBOC and the Miami VA medical center since June 2007.  These records have been associated with the Virtual VA online claims file and have been reviewed in connection with the Veteran's claim for an increased rating for his service-connected lumbar spine disability.

For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements.  The appeal is thus ready to be considered on the merits.

Service Connection - laws and regulations

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).
Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

A current disability must be present for a valid service connection claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (complaints of pain alone do not meet the current disability threshold); Evans v. West, 12 Vet. App. 22, 31-32 (1998). 

The Court has held that the current disability requirement is satisfied when a claimant has a disability at the time of filing the claim or during the pendency of that claim, even if the disability has since resolved.  McLain v. Nicholson, 21 Vet. App. 319 (2007).

If certain chronic diseases such as hearing loss become manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of such disability during service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  The Court has recently held that, for chronic diseases listed under 38 C.F.R. § 3.309(a), service connection can be established by showing that the disability has been chronic since active duty.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that the continuity of symptomatology provisions apply only to listed chronic conditions).  Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza elements is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).  

In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ('[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence').

Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).
For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when (1) the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; (2) when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 or greater; or (3) when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2012).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Background and analysis 

The Veteran contends that he has bilateral hearing loss that is related to in-service noise exposure.  A June 2006 Report of Medical Assessment reflected that the Veteran had been deployed to Ramadi, in Iraq, and had been in an area with a high likelihood of noise exposure.  In addition, the Veteran's DD214 reflects that his MOS was as a fire support specialist.  Based on these findings in his record, in-service noise exposure is conceded.

Service treatment records reflect that the Veteran had a right ear hearing loss, pursuant to VA regulations, upon separation examination in June 2006.  Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
35
20
25
35
LEFT
25
20
15
25
25



The Veteran was provided with a VA audiological examination in August 2006, which revealed a hearing loss pursuant to VA regulations, in the left ear.  At that time, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
14
10
18
22
LEFT
12
12
14
22
18

Speech recognition scores were 96 percent on the right and 92 percent on the left.  The examiner diagnosed bilateral normal hearing from 500 Hz to 4000 Hz with excellent speech recognition ability in the right ear and good in the left ear.

At a July 2012 VA audiological examination, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
15
20
25
LEFT
15
20
15
20
25
 
Speech audiometry revealed speech recognition ability of 96 percent in both ears.  The examiner diagnosed bilateral sensorineural hearing loss in the frequency range of 6000 Hz or higher frequencies.

At an April 2013 VA audiological examination, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
15
25
30
LEFT
15
20
15
25
30
Speech audiometry revealed speech recognition ability of 100 percent in both ears. The examiner diagnosed bilateral sensorineural hearing loss in the frequency range of 500 to  4000 Hz.  The examiner noted that the Veteran had been presenting with fluctuating hearing loss a high frequencies from 2002 to 2006.  He first demonstrated normal hearing upon entry into active duty.  The examiner acknowledged that the Veteran was exposed to noise during his active duty, and that it was well known that prolonged exposure to high intensity noise levels, like those in military service, can cause damage to the inner ear structures resulting in irreversible hearing loss.  The examiner did note that the Veteran presented with a hearing loss at higher frequencies, which could be considered secondary damage to outer hair cell function.  Therefore, it was his medical opinion that the bilateral hearing loss noted on separation examination in June 2006 and during the August 2006 examination is at least as likely as not related to the Veteran's conceded in-service noise exposure.

Here the Board notes that the July 2012 and April 2013 VA audiological examination results did not reflect hearing loss meeting the criteria under VA regulations.  However, under the McLain case, as noted above, in order to meet the requirement for a current disability, the evidence must show only that the disability was present at some point over the appeals period.  In this case, the evidence reflects that the Veteran has met the requirements under VA regulations for right and left ear hearing loss during the appeals period.  As such, one of the fundamental requirements for entitlement to service connection has been met.  Brammer.

The evidence of record further shows that the Veteran had in-service noise exposure, fulfilling the element of an in-service injury or incurrence of a disability.

Finally, a VA audiological examination has provided a link between the Veteran's in-service exposure and his current right and left ear hearing loss.  

As such, the evidence preponderates in favor of the Veteran, and entitlement to service connection for bilateral hearing loss is granted.

Increased rating - laws and regulations

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned.  38 C.F.R. § 4.7.

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21.

In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition.  The Board has a duty to acknowledge and consider all regulations that are potentially applicable.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required.  38 C.F.R. §§ 4.1, 4.2, 4.10.

Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged."  Fenderson v. West, 12 Vet. App. 119, 125-126 (1999).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the 'authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence'); Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Veteran is service-connected for lumbosacral strain, myositis (also claimed as lower back pain), with IVDS under Diagnostic Code 5243, which is rated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 

Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain, whether or not it radiates, stiffness, or aching in the area of the spine affected by the residuals of injury or disease, a 10 percent evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine is evaluated as 50 percent disabling, and unfavorable ankylosis of the entire spine is evaluated as 100 percent disabling.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5237 (2012).

The following notes accompany the General Rating Formula:

Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.

Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.

Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2).  Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.
Note (4): Round each range of motion measurement to the nearest five degrees.

Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphasia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.

Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.  Id.

For IVDS manifested by incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent evaluation is warranted; with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent evaluation is warranted; and with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent evaluation is warranted.  Note one states that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  See 38 C.F.R. § 4.71a, Diagnostic Code 5243.

VA regulations instruct that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45.  DeLuca v. Brown, 8 Vet. App. 202 (1995).

The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  38 C.F.R. § 4.40.  The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement.  38 C.F.R. § 4.45.

Notably, the Court has held that pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint.  38 C.F.R. § 4.59.  The application of 38 C.F.R. § 4.59 is not limited to arthritis-related claims.  Burton v. Shinseki, 25 Vet. App. 1 (2011).

Background and analysis - lumbosacral strain, myositis with IVDS from October 31, 2011

As of October 31, 2011, the Veteran's lumbar spine disability has been rated at a 60 percent disability rating under Diagnostic Code 5243, based on incapacitating episodes.  A 60 percent rating is the highest available under the formula for rating intervertebral disc syndrome based on incapacitating episodes.

At his October 2011 VA examination, the Veteran reported that his pain had increased, despite two epidural blocks and treatment.  The Veteran reported that, during flare-ups, he required rest, could not walk and had increased pain when standing and rising from bed or a chair.  The Veteran had pain and tenderness in his paravaertebral muscles and guarding and muscle spasms that were not severe enough to cause abnormal gait or spinal contour.  Lower extremity strength was normal and there was no atrophy.  Deep tendon reflexes were normal.  Straight leg testing on the right was positive and negative on the left.  The Veteran had radicular pain due to radiculopathy, which was reported as severe on the right and moderate on the left.  The Veteran reported intermittent pain in his lower extremities, which was moderate on both the left and the right.  Paresthesias and numbness were reported as severe on the right and moderate on the left.  The examiner noted that the nerve roots involved were the L4/L5/S1/S2/S3 (sciatic nerve) on the right only.  The examiner noted that radiculopathy affected only the right side, at a moderate level.  The Veteran did not have any other neurologic abnormalities related to his thoracolumbar spine disability, including bowel or bladder problems.  The Veteran was assessed as having IVDS which caused at least six weeks of incapacitating episodes over the prior 12 months.

In order to warrant a higher disability rating, the evidence must show that the Veteran's lumbar spine disability was manifested by unfavorable ankylosis of the entire spine.  In this case, there is no evidence that the Veteran had such limitation.  As such, a higher rating is not warranted for the Veteran's lumbar spine disability as of October 3, 2011.

With regard to neurological manifestations associated with the Veteran's service-connected lumbar spine disability, the Veteran has indicated that he does not have bowel or bladder problems due to his service-connected lumbar spine disability.  While the Veteran complained of pain in both lower extremities, the evidence does not support a separate disability rating for his left lower extremity.  Straight leg testing was negative on the left.  The examiner noted that the nerve roots involved were the L4/L5/S1/S2/S3 (sciatic nerve) on the right only, and that radiculopathy affected only the right side.  As such, a separate rating for neurological manifestations in the left lower extremity is not warranted.  The Board notes here that the Veteran is currently in receipt of a separate disability rating for radiculopathy of his right leg.  As he has not disagreed with his disability rating, this issue has not been raised on appeal.

Extraschedular considerations

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321 (2012).  The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).   

Generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  38 C.F.R. § 3.321.  The Board finds no reason to refer this case to the Compensation and Pension Service for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321(b).  The symptoms associated with the Veteran's lumbar spine disability are contemplated by the rating criteria set out in the General Rating Formula for Diseases and Injuries of the Spine and under the Formula for Rating IVDS Based on Incapacitating Episodes.  38 C.F.R. § 4.71a, Diagnostic Code 5243.  Thus, the evidence does not support referring this case for an extraschedular evaluation.


ORDER

Service connection for bilateral hearing loss is granted.

An initial disability rating in excess of 60 percent for lumbosacral strain, myositis, with IVDS, is denied for the period beginning October 31, 2011. 


REMAND

The Board finds that the issues of entitlement to an initial evaluation in excess of 20 percent prior to October 3, 2011 for lumbosacral strain, myositis, with IVDS be remanded for additional development.  

Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made.  Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  A July 2010 rating decision, included in the Virtual VA claims file, reflects that the Veteran underwent a  VA spine examination on April 19, 2010.  Review of the VA medical records in Virtual VA shows an entry for this examination; however, the examination report is not included in the entry, and there is a notation in the record that the report could not be viewed.  

As this examination report is relevant to his claim for increased rating for the Veteran's lumbar spine disability during the relevant time period, the report should be obtained and associated with the Veteran's claims file.

Accordingly, the case is REMANDED for the following action:

1.  Obtain the report from the VA spine examination provided to the Veteran on April 19, 2010 and associate the report with the claims file.

2.  After the examination report has been associated with the claims file, readjudicate the Veteran's claim for entitlement to an initial evaluation in excess of 20 percent prior to October 3, 2011 for lumbosacral strain, myositis, with IVDS.  If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
J.A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs